Lewis v. Scoville

• Decision Date: 22 December 1919
• Citation: 94 Conn. 79,108 A. 501
• Court: Connecticut Supreme Court
• Parties: LEWIS v. SCOVILLE.

108 A. 501

94 Conn. 79

LEWIS v. SCOVILLE.

Supreme Court of Errors of Connecticut.

December 22, 1919

Appeal from Court of Common Pleas, Litchfield County; James P Woodruff, Judge.

Action by Herbert Cecil Lewis against George C. Scoville. After appeal from a judgment of the justice of the peace the court granted defendant's motion for a judgment as of nonsuit denied plaintiff's motion to set aside the nonsuit, and plaintiff appeals. Error, judgment set aside, and new trial ordered.

The defendant, under date of September 2, 1914, signed a written order the material part of which reads as follows:

" Army and Navy Magazine, Washington, D. C.-Gentlemen Please deliver to any common carrier, addressed to me, one set of the ‘ Messages and Papers of the Presidents,’ *** bound in full black leather, at $59.50 per set, *** all in eleven volumes, for which I agree to pay $59.50 to the Army and Navy Magazine, or its assigns. I also agree to pay cost of transportation. *** This order is unconditional and not subject to cancellation, or to any agreement not written on the contract. ***

" I hereby acknowledge receipt of a duplicate of this contract and say that all representations relative to this purchase have been made in accordance with the above understanding.

" G. C. Scoville,

" Business Address, Norfolk, Conn.

" Received payment $5.

" J. J. Swift,

" For the Army and Navy Magazine, Washington and New York."

On the same day the defendant executed and delivered to the representative of the Army and Navy Magazine a written confirmation of this order as follows:

" I hereby confirm my purchase this day of one set of Messages and Papers of the Presidents, eleven volumes, bound in full black leather, and for value received I promise to pay to the Army and Navy Magazine, of Washington, D. C. (branch office, New York), or order, $59.50 as follows: $5 herewith, balance in the following payments: $5 on the 3d day of each month, beginning on the 3d day of October, 1914, payable at the branch office of the Army and Navy Magazine, 141-145 West 36th Street, New York, N. Y.

" In event that any payment as stipulated shall not be made within twenty days thereafter, the entire balance then remaining unpaid shall at once become due and payable.

" G. C. Scoville,

" Address, Norfolk, Conn."

Under date of September 3, 1914, the defendant wrote the following letter:

" Army & Navy Magazine, New York, N. Y.-Gentlemen: Upon consideration I find that I have no use for the books ordered Sept. 2d from your Mr. J. J. Swift. Kindly cancel this order at once. I am returning receipt given me and request you to return my check for $5.00.

" Respectfully, G. C. Scoville."

This letter was indorsed as received on September 4, 1914. On October 16, 1914, the defendant's attorney wrote the Army and Navy Magazine, stating that the " defendant absolutely refused to accept the books," giving his reasons, which are not now material. This letter was indorsed as received October 19, 1914. The complaint, in addition to the substance of these letters, alleged prompt shipment, offer of the books to the defendant by the carrier, refusal by defendant to receive the books, and stoppage of payment of the check given with the order in payment of the $5 acknowledged to have been received at the foot of the order. The plaintiff claims payment for the entire purchase price as due him under the terms of the contract.

In the writ the plaintiff is described as " Herbert Cecil Lewis, of the city of Washington, in the District of Columbia, doing business under the name of ‘ Army and Navy Magazine." ’ The name of Lewis does not appear anywhere in the complaint nor in the written contracts, and upon the trial no evidence was offered with respect to the identity of Lewis and the Army and Navy Magazine.

After the plaintiff rested his case the court granted defendant's motion for a judgment as of nonsuit, and denied a motion to set this judgment aside; and this appeal is based solely upon the court's action in granting the motion for judgment as of nonsuit and in denying the motion to set aside the judgment so granted. Other necessary facts are stated in the opinion.

Wilbur G. Manchester, of Winsted, for appellant.

J. Clinton Roraback, of Canaan, for appellee.

GAGER J.

The court in granting the motion for a nonsuit based its action upon the ground that there was " no proof, proper evidence, of the existence of the plaintiff or the Army and Navy Magazine or the party who took the contract." The complaint set up a contract of the defendant with the Army and Navy Magazine acting by its agent, one Swift. The proof consisted of the contract with the Army and Navy Magazine, defendant's check indorsed by the magazine, the letters of the defendant and of the defendant's attorney to the magazine, and defendant's testimony as to the presentation of the contract to him by Swift, his signing and the delivery of his check to Swift drawn to the order of the Army and Navy Magazine when he signed the contract, and his directions to his bookkeeper not to receive a package from the magazine when delivery was attempted. This is quite sufficient to show a business entity, recognized as such by the defendant, from which the defendant ordered the books in question. Whether this entity was a person, partnership, or corporation, doing business under an actual or fictitious name, is of no consequence, and, in the absence of a special issue, the defendant cannot now be heard to deny the existence of the Army and Navy Magazine, having repeatedly recognized it over his own signature.

But the record shows that the real point urged and upon which the court acted was the claimed failure of the plaintiff, Lewis, by his proof to show the relation between him and the Army and Navy Magazine. As we have seen, the plaintiff is designated in the writ as Herbert Cecil Lewis, doing business under the name Army and Navy Magazine. The claim of the defendant, sustained by the court, is that proof in the way of evidence must be offered showing that the plaintiff, Lewis, and the Army and Navy Magazine were one and the same person. As the record stands this claim cannot be supported. No such question is raised by the pleadings. And it is well settled under our practice and procedure that, where objection is intended to be taken to the capacity of a plaintiff to sue, this objection must be specially raised by proper pleading for that purpose. The answer here is a general denial. This only admits of proof contradicting the allegations of the complaint, and these, so far as the plaintiff is concerned, relate only to the Army and Navy Magazine. The question of plaintiff's right to sue because he is in fact the Army and Navy Magazine is not in issue under the general denial. Further, a special defense recognizes Swift, as agent of the Army and Navy Magazine, recognizes the making of the contract by the defendant and alleges that the books, under the circumstances set forth in the special defense, could be returned " at the expense of the plaintiff," and that the defendant notified " the plaintiff" of his intention to rescind the contract.

We have the case, then, where the general denial does not raise the question of the right of Lewis to sue, and when a " special defense" in express terms recognizes " the plaintiff," Lewis, as bound by the terms of the contract made by the defendant with the Army and Navy Magazine, and in which the defendant seeks to be relieved from the obligations of the contract by alleging a breach on the part of this plaintiff. Paraphrasing the language of the court in Merwin v. Richardson, 52 Conn. 233, we think the defendant, by his answer and special defense and by going to trial on the merits, waived any question as to the capacity or right of the plaintiff to sue. There is nothing of merit in the claimed distinction between the plaintiff, Lewis, and the Army and Navy Magazine. In Salomon v. Hopkins, 61 Conn. 49, 23 A. 717, the court recognized and adopted the rule stated in 1 Parsons on Notes and Bills, 81, where it is said:

" It is a fundamental principle that a man, either in his general dealings or in a particular transaction, may adopt whatever name he chooses and he will be bound accordingly."

The same rule was recognized and adopted in Pease v. Pease, 35 Conn. 131, 95 Am.Dec. 225, and such is the law generally. 29 Cyc. 270; 19 R. C. L. 1333; 132 Am.St.Rep. note page 571; L.R.A. 1915D, p. 983. And it seems to be held, in connection with these citations, that a party is at liberty to sue either in his own proper name or in the assumed name, for in either case it is one and the same person bound, and there is no question as to assignment or the real party in interest. Under the statute the appearance of a plaintiff, not an inhabitant of this state, by attorney, is sufficient. General Statutes of 1918, § 5621. The plaintiff in this case necessarily appeared by attorney, and no more was required upon the trial, unless the exigencies of proof required his personal testimony upon some issue raised by the defendant by his pleadings.

In this case the plaintiff by his writ told the whole story-that he did business under the business name of the Army and Navy Magazine. The complaint properly counted on the business name only as the name disclosed to the defendant. No issue as to the identity of Lewis and the magazine, or the capacity of the plaintiff to sue, having been raised, the court was in error in granting the motion...